N.B. The article notes that low-template DNA is "also known as 'touch DNA' because investigators can extract samples from just four or five cells deposited by suspects only briefly holding objects such as a gun, a door handle or a glass. The technique was used in the Peter Falconio murder trial in Australia as well as the conviction of the rapist Antoni Imiela, who struck several times in south-east England."

It is unnecessary to recite in detail the evidence presented at the formal hearing held before the Greek Judicial Board. Suffice it to say that all of the evidence offered in support of the charges consisted of inadmissible hearsay. The fraternity objected each time such evidence was offered. Each objection was overruled. In its appeal to the Assistant Vice President of the Division of Student Affairs of the Dean of Students’ decision, the fraternity argued that the decision and consequent sanctions could not stand because all of the evidence presented consisted of hearsay. This argument was rejected without comment. Following rejection by the Assistant Vice President of the Division of Student Affairs of the fraternity’s appeal, the fraternity sought review in this court pursuant to section 120.68, Florida Statutes (2007).

In its rules, the University has expressly provided that, at formal hearings such as that held before the Greek Judicial Board, the respondent "shall be accorded the right to . . . [q]uestion adverse witnesses." Fla. Admin. Code R. 6C1-4.016(5)(b)2b.

The fraternity argues that it was denied this right because all of the evidence presented consisted of inadmissible hearsay, in the form of either videotaped interviews or testimony provided by two investigating police officers who summarized the results of their investigations, including statements purportedly made by individuals who had been present at the party from which the charges allegedly arose. We agree.

The pertinent facts of this case are substantively indistinguishable from those in Morfit v. University of South Florida, 794 So. 2d 655 (Fla. 2d DCA 2001). In that case, a student who had been suspended from classes following a formal hearing appealed, complaining that the university had denied him his right, set forth in the Student Code of Conduct, to question adverse witnesses because the complaining witnesses were never called to testify. In reversing the suspension, the court said:

The complaining witnesses were never called. In fact, the only statements from the alleged victims were contained in the investigation report written by an officer who talked with them. Morfit was entitled to have the witnesses make their statements directly to the hearing officer, and he was entitled to question them. This is a fundamental ingredient of due process in any judicial or quasi-judicial proceeding. It is recognized that in school suspension cases, a relaxed due process standard is followed. . . . However, the school’s own code guaranteed Morfit this right.

Id. at 656 (citation omitted). We agree with the Second District’s conclusion that denial by a public university of a right accorded by its own conduct code to question adverse witnesses requires reversal in a case such as this.

In this case, without the improperly admitted hearsay evidence, there was no evidence presented that might support the Greek Judicial Board’s findings, a point which the fraternity argued forcefully, albeit unsuccessfully, in its appeal to the Assistant Vice President of the Division of Student Affairs. Accordingly, we must reverse. See § 120.68(7)(b), Fla. Stat. (2007) (requiring reversal when agency action depends upon findings of fact "not supported by competent, substantial evidence in the record"); Pasco County Sch. Bd. v. Fla. Pub. Employees Relations Comm’n, 353 So.
2d 108, 120 (Fla. 1st DCA 1977) (agency action must be set aside if based exclusively upon inadmissible hearsay evidence). Moreover, because the fraternity correctly argued below that the evidence presented by the University was insufficient as a matter of law to sustain any of the charges, on remand we direct the University to reinstate the fraternity.

REVERSED and REMANDED, with directions.

&&&

This court's willingness to insist that the university adhere to its own procedural rules is refreshing. Yes, the court might be faulted for not making its rationale entirely clear -- e.g., did the the court think that university did wrong because the university did not follow the rules the university itself chose to adopt or did the university do wrong because hearsay cannot constitute "substantial" or "competent" evidence? But the last time I looked -- and that was a long time ago -- this sort of vagueness about the rationale for making a state university (or other state agency) adhere to certain procedural rules and rules of evidence in nonjudicial adjudicative proceedings that have a serious impact on persons such as students is common rather than atypical. And it is refreshing to see that at least some courts still find merit in requiring procedural regularity or evidentiary reliability or both in disciplinary proceedings of the sort found here. (Alas, it is unlikely, is it not, that this court would reach the same result were the university in question private rather than public.)

About Me

Student of the law of evidence, evidence, inference, and investigation. Sometimes writes books. Sometimes writes articles. Sometimes tinkers with computer programs to support the marshaling of evidence for legal activities such as trials and pretrial discovery and investigation. And sometimes takes photographs.